Digests

Canada (Minister of Citizenship and Immigration) v. Varela

IMM-2807-00

Lemieux J.

5/7/00

17 pp.

Minister seeking injunctions preventing, until underlying leave and judicial review application finally determined, continuation of Adjudicator's inquiry on inadmissibility under Immigration Act, s. 19(1)(j) into what respondent did or did not do in Nicaragua before coming to Canada--In March 1992, Refugee Division determined respondent not Convention refugee as serious reasons for considering had committed crime against humanity--Leave to appeal decision denied by F.C.A. in June 1992--Nevertheless, in 1993, obtained permit from Minister authorizing respondent and family to proceed to landing--In October 1999, immigration officer made report under Act, s. 27 stating respondent member of inadmissible class described in Act, s. 19(1)(j)--Minister arguing Refugee Division's 1992 decision had resolved issue of reasonable grounds to believe respondent had committed crime against humanity within meaning of Criminal Code, s. 7(3.6), and Adjudicator therefore precluded from hearing any further evidence on point (as found in Figueroa v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 250 (T.D.) (QL)--Minister conceding required to lead evidence establishing second branch of Act, s. 19(1)(j) namely, if such act had been committed in Canada, would have constituted offence against laws of Canada--Minister arguing (1) Figueroa binding on Adjudicator; (2) crime against humanity issue res judicata in view of F.C.A.'s denial of leave to respondent in 1992; (3) respect for Refugee Division's 1992 determination required--Injunction granted--Serious issue--Established principle courts will not, except in special circumstances, entertain judicial review of interlocutory evidentiary rulings made in middle of duly mandated inquiry--However, nature of Adjudicator's ruling constituting special circumstance requiring Court's immediate intervention--Ruling dealt with fundamental and basic aspect of inquiry: what evidence can or must be heard, if any, in respect of first prong of Act, s. 19(1)(j)--Therefore, Adjudicator's ruling jurisdictional in nature determining, as it did, essence and scope of inquiry--Irreparable harm if Minister forced to revisit exclusion findings of Refugee Division herein, and in at least 3 similar cases--Balance of convenience--Public interest favouring Minister herein--In public interest that duly constituted inquiry should not be restrained except in clearest cases--First, Adjudicator's ruling in not following Figueroa, which appears to be on point, affecting judicial system and its proper functioning in terms of binding rulings--Second, Adjudicator's ruling going to heart of case Minister must establish--Public interest in this circumstance does not benefit in what could be void proceeding--Third, matter of proper application of Convention and its interrelationships with domestic law matters vital to Canada's international reputation--Leave granted--Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(j) (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3), 27 (as am. idem, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c. 15, s. 5)--Criminal Code, R.S.C., 1985, c. C-46, s. 7(3.76) (as enacted by R.S.C., 1985 (3rd Supp.), c. 30, s. 1).